[EL] “Judge tosses Kentucky’s ban on corporate campaign donations”
Rick Hasen
rhasen at law.uci.edu
Fri Apr 1 09:33:43 PDT 2016
It is hard to know how much to make of this case given the concession by
the state. Not clear if the Court would come out the same way without
that concession.
Also not clear if the court was applying, or should apply, strict
scrutiny to this question (I'd say no).
Rick
On 4/1/16 10:33 AM, Allen Dickerson wrote:
>
> Rick,
>
>
> I wrote a short piece on this topic for the Toledo Law Review a few
> years back. My own conclusion was that /Austin/'s equal protection
> holding had not been overturned by /Citizens United/, but that the
> Eighth Circuit decision in /Minn. Citizens Concerned for Life
> v.// Swanson/ was correct in stating that (1) /Austin/ applied strict
> scrutiny to equal protection claims in this area, and so (2) a
> fact-specific inquiry would be required, one that took account of
> /Citizens United/'s rejection of the anti-distortion rationale.
>
>
> It seems such a fact-specific inquiry did take place here, and that
> the state conceded that corporations and unions were similarly
> situated in the context of Kentucky law. (P. 10) ("During oral
> argument, Defendants further conceded that there are no relevant
> differences between LLCs and corporations in this context that would
> justify such disparate treatment.").Since /Austin/ required the
> application ofstrict scrutiny, that concession was fatal.
>
>
> The article is "What Remains of /Austin /After /Citizens United,/" 44
> U. Tol. L. Rev. 569 (2013) if anyone is interested. Given recent
> cases, including this one and /Wagner/, the topic is ripe for fuller
> consideration.
>
>
> Thanks for raising an interesting point.
>
>
> Allen
>
>
> Allen Dickerson
>
> Legal Director
>
> Center for Competitive Politics
>
> (703) 894-6800
>
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu> on behalf of Rick
> Hasen <rhasen at law.uci.edu>
> *Sent:* Friday, April 1, 2016 10:52 AM
> *To:* law-election at UCI.edu
> *Subject:* Re: [EL] “Judge tosses Kentucky’s ban on corporate campaign
> donations”
> Opinion:
> http://electionlawblog.org/wp-content/uploads/Protect-My-Check-v.-Dilger-EDKY.pdf
>
>
> On 4/1/16 9:43 AM, Rick Hasen wrote:
>>
>>
>> “Judge tosses Kentucky’s ban on corporate campaign donations”
>> <http://electionlawblog.org/?p=81427>
>>
>> Posted onApril 1, 2016 7:27 am
>> <http://electionlawblog.org/?p=81427>byRick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> AP
>> <http://www.washingtontimes.com/news/2016/mar/31/judge-issues-temporary-injunction-in-campaign-fina/>:
>>
>> A federal judge has ruled that Kentucky cannot bar a corporation
>> from contributing to political campaigns while no such
>> restrictions apply to other organizations such as labor unions.
>>
>> The ruling stems from the heated battle over “right-to-work”
>> legislation in the state: the labor unions that oppose those
>> measures are allowed to make political donations, while a
>> non-profit corporation that promotes them is not.
>>
>> I have not yet seen this opinion (if anyone has it please send it
>> along), but it seems to conflict with the Supreme Court’s equal
>> protection holding in /Austin v. Michigan Chamber of Commerce
>> <https://scholar.google.com/scholar_case?case=3609582225306729508&hl=en&as_sdt=6&as_vis=1&oi=scholarr>/,
>> which rejected just such an argument because Michigan’s law (on
>> expenditures) targeted corporations (though not media corporations)
>> but not unions:
>>
>> Because we hold that § 54(1) does not violate the First
>> Amendment, we must address the Chamber’s contention that the
>> provision infringes its rights under the Fourteenth Amendment.
>> The Chamber argues that the statute treats similarly situated
>> entities unequally. Specifically, it contends that the State
>> should also restrict the independent expenditures of
>> unincorporated associations with the ability to accumulate large
>> treasuries and of corporations engaged in the media business.
>>
>> Because the right to engage in political expression is
>> fundamental to our constitutional system, statutory
>> classifications impinging upon that right must be narrowly
>> tailored to serve a compelling governmental interest./Police
>> Department of Chicago/v./Mosley,/408 U. S. 92, 101 (1972)
>> <https://scholar.google.com/scholar_case?case=7757495192285749706&hl=en&as_sdt=6,44&as_vis=1>.
>> We find that, even under such strict scrutiny, the statute’s
>> classifications pass muster under the Equal Protection Clause. As
>> we explained in the context of our discussions of whether the
>> statute was overinclusive,/supra,/at 660-661, or
>> underinclusive,/supra,/at 665 and this page, the State’s decision
>> to regulate only corporations is precisely tailored to serve the
>> compelling state interest of eliminating from the political
>> process the corrosive effect of political “war chests” amassed
>> with the aid of the legal advantages given to corporations.
>>
>> Although a different aspect of /Austin/was overruled in /Citizens
>> United/, I believe this aspect of the opinion remains good law.
>>
>> Share
>> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D81427&title=%26%238220%3BJudge%20tosses%20Kentucky%E2%80%99s%20ban%20on%20corporate%20campaign%20donations%26%238221%3B&description=>
>> Posted incampaign finance <http://electionlawblog.org/?cat=10>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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